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Liability For Costs In Crown Court Criminal Defence Cases: The Perils Of Cohabitation And Solicitor’s Duties

Date: (19 January 2011)    |    

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The Government believes strongly that those convicted of crime should make a contribution to some or all of their publicly-funded defence costs. By ensuring that finite legal aid resources are better targeted at those individuals who most need them, means testing will help to put the legal aid budget on a more sustainable footing.

Every defendant who appears for trial at the Crown Court will be granted a representation order provided they have submitted a completed application form *1. This raises the question of a solicitor's duty towards a defendant's partner. Their income and assets form part of the assessment. To date, this has not been a significant issue as means testing in the magistrates courts simply determined whether they were eligible or not. It was a "yes / no" test and not a partial test. But in the new system (Statutory Instrument No. 142, The Criminal Defence Service (Contribution Orders) (Amendment) Regulations 2010, Commencement - 1 January 2010 – this has been run as a pilot scheme but since 28 June 10 is of general application), capital is up for grabs, including shared capital.

As part of the application process, defendants will be asked to provide information about their income and capital assets, in a number of circumstances they will also be required to provide supporting evidence. On assessment of a defendant's disposable income, a test which aggregates his *2 means with his partner's, the eligibility test will determine whether a defendant falls into one of four categories:

Entitled to free legal representation;
Exempt from the payment of an income-based contribution (as the joint disposable income is in less than £3,398 pcm); but liable for all or part of his legal aid costs following a conviction based on having capital or equity in excess of £30,000.
Required only to pay a capped income-based contribution on a monthly basis
Required to pay a capped income-based contribution and liable for the remainder of his legal aid costs following conviction because of the high value of their capital assets, including equity, in excess of £30,000.
Capital and equity contributions will only be taken from that portion which is above the £30,000 threshold and includes equity in property. It should also be noted that there are circumstances in which a convicted person can be required to contribute to the costs of his prosecution.

A dilemma for defence solicitors arises. You need the partner (note: there is no requirement that the partners are married or in a formal civil partnership) to sign the CDS14 & CDS15 forms (the relevant applications for legal aid in criminal cases). You have to get her signature and submit the forms and evidence within 14 days of committal / transfer. But whilst her signature will assist you in obtaining legal aid (and it will assist your client also), there is a realistic possibility that she is signing away the capital in her property.....and significant sums are at stake.

As an example *3, a defendant's long-term partner could have been working all her life and had no involvement in her partner punching someone on a night out and killing them instantly. They have a shared house with £130,000 equity. That means that up to £100,000 of the equity in the house can be used to settle the bill. In a murder case where the defendant is convicted, there is a very good chance that most of that equity would have to be used to pay the bill.


*1. At the Magistrates Court there is an additional test that it is in the interests of justice to make a representation order

*2. In this article, for the sake of simplicity, defendants are male and their partners female

*3. (This example is taken from a website for criminal solicitors where they discuss practical issues in their cases)